Supreme Court 2A second amendment
Courtesy Jeff Hulbert
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Despite Scalia’s professed methodology, we can also understand his opinion for the majority [in D.C. v. Heller] as an example of the modern understanding of the right to keep and bear arms, itself heavily influenced by the gun rights movement. Shortly after the Court decided Heller, Professor Reva Siegel described how “Heller’s originalism enforces understandings of the Second Amendment that were forged in the late twentieth century through popular constitutionalism.”

Professor [David] Cole similarly has argued that “the NRA almost certainly had more responsibility for the result in Heller than did ‘originalist’ theory.” Accounts of the NRA’s and other gun rights groups’ success in changing the Second Amendment narrative between the 1970s and Heller amply support these conclusions.

The second half of the Second Amendment’s 27 words adorns the lobby of the NRA’s headquarters, and beginning in the 1970s, the organization began a remarkable campaign to loosen gun regulations around the country in the name of the right to keep and bear arms. Many states amended their constitutions to expand protection of arms rights and passed laws normalizing gun carrying as a constitutional right.

The NRA rewarded politicians who supported gun rights and punished those who did not. Meanwhile, the group funded scholarship that “chang[ed] the academic landscape” by the time the question of whether the Second Amendment protects an individual right reached theSupreme Court.

Similarly, “[a]s a result of the NRA’s efforts at the national level, both the executive branch and Congress had endorsed an individual-rights view of the Second Amendment by the time the Supreme Court addressed the issue.”

Those efforts permeate Heller. The historical record did not change in the decades before Heller, and it provides at best ambiguous support for the majority in any event. But the terms of the popular and legal debate about the Second Amendment had shifted.

In 1991, former Chief Justice Warren Burger called the individual rights view of the Second Amendment “one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I’ve ever seen in my lifetime.” By 2008, fraud or no fraud, 73 percent of the American public agreed that the right to keep and bear arms protects an individual’s right to possess a gun. That year, the individual rights view became the law of the land in Heller.

Accounts of the gun rights movement’s influence on the understanding of the Second Amendment frequently end with the triumph of the individual rights view in Heller. Yet the social movement conflict did not end in 2008; it is now more pronounced than ever. And within that conflict, people overlook the fact that Americans exercise Second Amendment and self-defense rights with non-gun arms.

That neglect gets reflected in policies expanding gun rights. Furthermore, if Heller’s popular constitutionalism is a guide, the legal understanding of “arms” could follow suit. Indeed, as if anticipating this result, the 1999 edition of Black’s Law Dictionary added an entry for “right to bear arms”: “The constitutional right of persons to own firearms.”

–Eric Rubin in The Gun Rights Movement and “Arms” Under the Second Amendment

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58 COMMENTS

    • Once again another article that singles out the Second Amendment for unneeded further analysis all while failing miserably to mention or define Gun Control.

      History clearly shows racism and genocide never fails to ride along with Gun Control no matter where it has been or where it goes.

      When the diabolical history of Gun Control is kept off the table either by ignorance or by political correctness it leaves The Second Amendment under the microscope and holding the short end of the stick. Worse it leaves those who were on the racism and genocide end of Gun Control throughout History lost and forgotten with no stick to hold whatsoever.

      • Rubin is full of it. However, he writes for the Brennan Center, so no surprise there.

        Example: the legal scholarship that “changed the legal landscape” was unquestionably Sanford Levinson’s 1986 Yale Law Review piece, “The Embarrassing Second Amendment”:

        https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=7254&context=ylj

        Sandy Levinson is not an originalist, conservative (he’s actually hard left), or a gun rights supporter. However, he is known to be intellectually honest to a fault, and regarded as one of the leading constitutional scholars in the country. (I had Levinson as a professor in law school many years ago.)

        Levinson’s seminal article essentially said if we look at the language of the second amendment (remember, he’s not an originalist) and apply the same constitutional interpretation doctrines that we do for other civil rights / constitutional provisions, then the Second Amendment may actually support an individual right to bear arms. Levinson wasn’t happy with that conclusion (hence the title of the article), but he had the honesty to say that it wasn’t proper to simply dismiss or ignore a constitutional provision because you did not like the policy implications of taking it seriously.

        That a major constitutional scholar was willing to say that broke the dam in academia, as in short order Lawrence Tribe and many other leading constitutional scholars had to admit that the individual rights interpretation of the Second Amendment was at least a serious question, and pro-Second Amendment articles started to be treated seriously in legal academia. This then paved the way for judges to do so as well, ultimately resulting in Heller / MacDonald.

        Does Rubin mention the Levinson article at all? Nope, he just avers that the legal scholarship was all the result of NRA funding / planting the articles. (Again, anyone who knows anything about Sandy Levinson or Larry Tribe will tell you that the idea that either of them are stooges for the NRA is beyond silly.)

        • Great comment! It’s really kafkaesque that some leftists recognize “rights” that are not in the Constitution, and were never contemplated in any of founding states’ constitutions, yet still deny the plain English wording of the 2nd amendment. If more liberals were intellectually honest they would never have denied an individual right to keep and bear arms.

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  1. Amazing! It wasn’t redefined it was affirmed. Wen you read the writings of the Founders, their intent was all male, at that time, citizens be armed and equipped with shot, powder and accoutrements necessary to answer the call to arms. They distrusted a standing army as an instrument to be commandeered by tyrants to subjugate The People, thus The People were to be armed commensurate with standing armies of the day. Yes including cannon and ships of war! Both were commonly in private, and village hands!

    • You don’t even have to read anything other than the Bill of Rights to understand that the 2nd Amendment is a protection of an individual right. Did the 1st Amendment establish a ‘collective right’ for government to establish a state religion? State press? Did the 3rd Amendment establish a ‘collective right’ for the army to take over your house? Did the 4th Amendment establish a ‘collective right’ for the government to search your property without a warrant or probably cause? No. There’s no ‘collective rights’ in the Bill of Rights, only restrictions of government to interfere with the individual citizen’s rights. ‘Collective rights’, i.e. powers, are enumerated in the Constitution. You don’t have to be a history scholar to figure that out.

  2. The biggest piece of fraud, and again I use the word FRAUD, was United States v. Miller, a case that was run through SCOTUS without any opposing arguments (by design) and which explicitly sets out to tax a constitutional right, relies upon a laughably threadbare definition of “interstate commerce” and by their own logic should guarantee the civilian ownership of any weapons that would see military service and be carried by militia.

    Mr. Warren Burger can go pound sand.

  3. The Second Amendments as submitted by James Madison 1789 reads as follows; “The Right of the people to keep and bear arms shall not be infringed, a well regulated Militia being the best security of a free state, no person scrupulous of bearing arms shall be required to serve.” Read that again and then you might understand the intent of Madison’s Amendment, Mr. Eric Rubin because you sir do not understand the Original Intent and purpose of this Amendment.

  4. “The NRA rewarded politicians who supported gun rights and punished those who did not.”

    THIS is what the NRA does. With money and other incentives. The NRA does not make law. It does not enforce law. For or against. It uses the idea that politicians can be bought and sold to the highest bidder. That’s what ‘lobbying’ is all about. When Biden says he has beatin the NRA, what he is talking about is his anger with the fact that the NRA does not give more more to the Democrats and gives most of it to Republicans. THAT is the heart of the argument. It’s an organization that the Democrat party does not control. Just like other orgs such as the GOA. If it were the other way around with the NRA giving most of its money to the left generally following the leftist agenda, Democrats would embrace it and even protect it. Just like it does with the ACLU. When Dems cry about the NRA, it’s just whining about who does and does not get money and who the org is and is not partial to.

    Even without the NRA, the 2nd Amendment is there and is just as powerful and meaningful. Ultimately, we need these orgs just because politicians are all so easily bought and sold. That is how that all get so rich. The 2nd was there BEFORE the NRA and will be there after.

    • This is oddly the same reason that the FOP comes under assault by Democrats. If it was like say a teachers union they could do whatever they pleased and it wouldn’t be a big deal at all.

  5. Black’s Law Dictionary added an entry for “right to bear arms”: “The constitutional right of persons to own firearms.”

    The right pre-exists the Constitution. The 2nd Amendment protects the individual’s right from government infringement. And it’s not own, it’s KEEP and BEAR arms.

    • Concur. It is sad that many “educated” individuals, including those that wear black robes and pass judgement are blindingly ignorant about this.

      • 300BlackoutFan,

        I don’t think those “educated” individuals (including judges) are blindly ignorant about the Second Amendment to the United States Constitution.

        Rather, people who oppose the Second Amendment oppose it because they don’t like it or because they think it will hinder their agenda. That being the case, they provide “arguments” which they hope will win people over to their side (either because the arguments seem to “make sense” or because the arguments resonate on an emotional level). Note that said “arguments” do not have to actually be factual–they just have to seem plausible/factual upon casual inspection or resonate on an emotional level.

        • Never attribute to malice that which can be adequately explained by stupidity.
          Stupidity takes many forms including lack of intelligence and lack of reasoning.

          If one doesn’t like an amendment to the Constitution, there are specified means of amending it. They are welcome to use that path to their hearts content.

  6. Even before the bill of rights, the writings of the founding fathers were clear regarding the bearing of arms.
    Consider Samuel Adams’ “The Right of The Colonists” Nov 1772 which starts:
    Among the natural rights … are these: First, a right to life; Secondly to liberty; Thirdly to property; together with the right to support and defend them in the best manner they can … commonly called the first law of nature

    The media peddles the absolute lie that Heller redefined the 2A.

  7. “And within that conflict, people overlook the fact that Americans exercise Second Amendment and self-defense rights with non-gun arms. ”

    bringing a knife to a gun fight significantly decreases your chances

    • It is a fact that people do “exercise Second Amendment and self-defense rights with non-gun arms.” – that’s true. Its also a fact that trying to do so results in more victim death and serious injury, or likely hood of it, than if the victims had used a gun. So more factually this could be stated…

      “And within that conflict, people overlook the fact that Americans exercise Second Amendment and self-defense rights with non-gun arms and have a greater chance of being killed or very seriously injured. ”

      • But non-firearms are still protected by the 2nd Amendment.

        Ref: SCOTUS ruling on Caetano v. Massachusetts

        Referring to its landmark 2008 ruling on handguns in the home, the justices said the Second Amendment applies “to all instruments that constitute bearable arms,” even those not in existence at the time of the founding.

      • Unless it’s a phased plasma rifle in the 20 MW range…
        Seriously though, “the best chance is with a firearm” only applies until superior tech is available.

        • The problem with a phased plasma rifle in the 20 MW range is that only a body-builder like Arnold Schwarzenegger can handle them because they are so heavy. (Ever seen a 20 Mega Watt power supply?)

          For the rest of us mere mortals, we will have to be content with a, “phased plasma rifle in the 40 Watt range.”

      • ll true enough.. BUT there remain situations where any non-gun arm is far to be preferrred over the nothing that moght otherwise be brought to bear.

        A prohibited person” cannot own possess “firearms”. That does not include a prohibitioin on non0gun arms.. bow.arroes, crossbow, pellet gun, five cell Maglite, baseball bat….. shieilag, sword, dirk, machete, cutlass……. NONE aore “firearms” and thus can lawfully be possessed in places where “firearms” are prohibite,d or by persons prohibited arms.

  8. This sounds to me like whining, and the beginning of an effort to redefine the Second as being about arms other than firearms. Moving the goalposts, in other words. A Leftist specialty.

    And what Burger said about the Second, I say about the income tax. One of the biggest frauds ever perpetrated on the country

  9. “former Chief Justice Warren Burger called the individual rights view of the Second Amendment “one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public”

    The greatest fraud in the history of the American republic was Warren Burger — a clown who believed that a right to abortion was enshrined in the Constitution but the right to keep and bear arms was not.

  10. The Federal Government already restricts the Arms individuals and the People through their elected Representative Government can bear. So called second Amendment advocates choose to leave out the first half of the Amendment. They ignore the “Well REGULATED” part out. “The People” is a collective term, it does not mean individuals. “The People” referring to states and other Elected Local Governments have the right to form and arm their own Militias, they also have the right to regulate who can bear Arms, including Firearms and where.

    For instance even very PRO GUN Texas limits the so called right to bear arms, you can not bear arms in a courtroom or a bar. back in the Wild west some town prohibited bearing arms within city limits and more recently the NRA banned bearing ARMS at their National Convention when Vice President Pence was addressing the crowd. .

    However since the advance of arms the Federal government has restricted the rights of the People to bear ARMs and that has never been challenged. For instance ARMs are any weapon. States can not develop their own Atomic Bombs or chemical weapons or even very powerful ballistic weapons to arm their Militias. That said the Second Amendment has already been made moot from a legal standpoint.

    Notice that Gun advocates purposely neglect to acknowledge that the Second Amendment does not say Gun or Firearm, it says ARMS. ARMS are any weapon of war. This whole Second Amendment myth has been made up by the NRA in its efforts to protect the interests of Gun Manufacturers. So the next time a progun person says the Second Amendment gives him the right to own a gun ask him where it says Gun or Firearm, ask him what about “Well Regulated Militia” ask him why the Amendment only applies to Guns and not ATOMIC bombs which as also ARMS.

    • It must be remembered that despite the disingenuous Scalia rant in the Heller Case the decision was far more anti-gun than pro-gun because the court stated that the power mad courts had the right to “regulate” firearms, (double talk for the right to restrict or ban firearms). This was an “out” to let them circumvent the statement that “guns in common use” are guaranteed by 2A, (government today is still every bit a slick and disingenuous as it was when the Criminals who founded the country wrote 2A.)

      Since the Heller decision banning guns and magazines is exactly what has already happened as the double dealing, back stabbing, power mad courts have banned firearms and their accoutrements with mad abandon ever since i.e. magazine bans, weapons bans, right to carry bans, etc. ad nauseam. In 2020 the largely rabidly Conservative gun hating Supreme Court has refused to hear 12 Second Amendment cases letting the lower court anti-gun rulings stand and done by a largely conservative staffed lower courts proving the lust for power crosses party lines with Conservative Judges hating gun ownership as much as the Liberal Justices.

      It must also be remembered the courts have reversed themselves since the 30’s since they once declared only weapons of war were covered by 2A so they could uphold the ban on short barreled shotguns, while during the anti-gun Reagan years they reversed course, banned machine guns, and then stated 2A was about duck hunting and sporting weapons. And the Courts again reversed themselves under Clinton claiming they could ban sporting guns i.e. Clintons ban on assault rifles. Again just another use of smoke and mirrors to ban any and all weapons that are a threat to themselves and their absolute power over the people.

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    • Reminder to everyone:
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    • right to regulate who can bear Arms, including Firearms and where.

      ABSOLUTLEY NOT1111

      that term “well regulated” means to “make regular” as in one would “regulate” a clock or othercomllex mechanism. It does not and never has meant to make all manner or laws, restrictions, permits, requriements, preconditioins, who cah have when when and where….. the milita of the founding period drilled once or twice weekly, kept their weapons will cleane,d functioning, supplied, repaire,d and ready to be used for any necessary purpose. They also had their chain of command well defined, various specific functions assigned to different members. In other words, a force, even if small, well prepared and equiped to see to “the security of a free state”.

      SO get that tripe aobut rules and regulations out ofbyour head. never was part of the Second, and in spite of ocurt decisions, local and state and especially federal laws to the contray, mean and yet today still means precisely what that Second Article of Amendment says…. whether part of the well equipped, trained, organised, functioning, prepared, coordinated milita or not, the right OF THE PEOPLE to keep and bear shall NOT be infringed.

  11. Former Chief Justice Burger has been given many monikers including ‘Burglar’ for his theft of rights and ‘Bungler’ for his inconsistent views. While Burger is said to have been a fine administrator he was most assuredly not a legal scholar. We must recall the legal system evolves from previous decisions, many of them in direct conflict with the views and intents of the special interest group known as the Founding Fathers.

  12. The whole “collective right” thing is arrant nonsense. These people know damn well what those 27 words mean — they’re just pretending that sentence is unusual and inscrutable because it suits their agenda.

    The grammar, syntax, and logic are crystal clear. Put the same kind of statement in any other context, and nobody’s confused at all.

    Well-regulated libraries being necessary to education in a free state, the right of the people to keep and read books shall not be infringed.

    But if you’re committed to the “progressive” reading of the Second Amendment, this identically constructed sentence must mean the right to own books is only a collective one.

    So it follows that the government can put reasonable limits on which books, and how many you can own, and when, where, and how you can read them, right?

    What’s more, the “progressive” reading means that having your own home library could (and should) be forbidden; the government educates librarians, who are the only ones responsible enough to handle large caches of books.

    And carrying one with you as you walk around in public, let alone reading on public transportation, can’t be done without a permit — and in some states, showing good cause and demonstrating extreme need beyond the usual. And don’t forget the atrocities that would follow from ordinary citizens having access to devices of mass verbiage…a whole Kindle library in your hand? Writing your own books at home? Good God, man, you can’t just allow people to do that on their own!

  13. There was a fad within legal academia in the 20th century, to pretend that the 2nd Amendment meant simply nothing at all. That’s all the supposedly “collective right” interpretation means, there is literally no act to restrict guns by the government that its proponents believe would be prohibited.

    Obviously, for so many bright and learned men to put such time and effort into crafting an amendment so as to ensure it has no real effect is an absurdity, which is why the defenders of this idea avoid dealing with the arguments straight-on, instead choosing elephant-hurling and ad-hominem attacks.

  14. And what? Let’s just forget the ORIGINAL intention of the Constitutional amendments (all of them, not just 2A) that they are intended to limit the power of the government – to literally inform the government where they must not and cannot encroach. To focus on the origin and meaning the the 2A, it takes a bit of digging, but the Federalists papers and other pre-Constitutional documents support the individual right to bear arms. As many have pointed out, hunting and sporting uses of firearms is assumed, and was in such common use at the time as to be a “no-brainer”. But the writers and the votes behind passing the 2A and others stemmed from pointing out specifically individuals have the right to bear arms and even the responsibility to support a militia if called upon. If it were under the jurisdiction of the Federal or state government, the framers would have been very specific about that. The framers were extremely careful and judicious in their wording and it is significant about the actual words they did use as it is significant of the words they did not use in the amendment. Simply, it means what it says it means and nothing LESS.

  15. My question, How are ‘They’ going to get around changing the Constitution of The United States of America .
    Its coming.

  16. “Professor [David] Cole similarly has argued that “the NRA almost certainly had more responsibility for the result in Heller than did ‘originalist’ theory.”

    Well then Professor Cole is an idiot because Heller himself will tell you the NRA worked against him at every step of the way. Gun rights are advancing in SPITE of the NRA, not because of it.

  17. Oh please, all the NRA’s efforts on Heller? NRA tried to STOP Heller from pushing the case, and only jumped in when SCOTUS (Which they told Heller and his lawyer’s they’d never hear it.) accepted the case and scheduled the arguments.

    The NRA under Wayne “For My Profit” LaPierre doesn’t want any definitive victories, that doesn’t keep the donations rolling in.

    The NRA has done a lot of good things over the years, and it’s efforts for gun safety are a great thing. The last thing they did at the Federal level was when people in the Congress/Senate offered them a “Compromise” on the Assault Weapons ban that exempted AR-15’s, and raised the mag limit to 15, but the bill was permanent, told them to “Stuff it, we’re going to beat you”. Then they promptly lost, but the bill sun-setted.

    Other people pushed and financed Heller, and really McDonald, NRA just claimed credit for it. They need constant doubt, and the the threat, actual passing legislation to keep their donations flowing in.

    I hope NY AG James destroys the “LaPierre NRA”, so a new organization built on it’s tomb will never let it turn into a “Cult of Personality’ like it is now under Wayne.

    Geez Wayne, you’re 70 years old, you think you are going to last forever? Where’s the strong secondary leader to step in if you get ill, or die? There is none.

    Others are now using modified “Heller” strategies and going after laws effectively. Sadly Federal appeals courts occasionally rule in our favor, then the government appeals, and an “En Banc” panel over turns it on review.

    Eventually SCOTUS has to take cases. Some states treat “Heller” like it doesn’t exist, and keep violating rights. They don’t see the trap though. the more SCOTUS rights decision with the current roster, the more they expand on the Second being incorporated under the Fourteenth Amendment, and that overrules states.

    I think the current NY case will mostly be a bust but I bet language that further expands on the 14th amendment angle gets in, and slowly defuses out.

    if Dementia Joe doesn’t appoint any SCOTUS Judges, and a Republican follows him, the court may change. If something happens to the Chief Justice, Roberts, and a Republican replaces him, and they pull the same stuff as the last three justices (Thomas too.) on that person, they may go out of their way to hear cases that blow up the state’s discretion almost completely.

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